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» » Legal Perspectives with Fidelicy Nyamukondiwa


Should Deliberate Transmission of HIV Be Decriminalised?


There was a hullabaloo after the Marriage Bill, 2019 was gazetted. The public uproar was necessitated by the infamous Clause 40 which sought to legalise ’small houses’.  The Clause 40 tumult eclipsed yet another contentious provision of the Bill; clause 53(2). The latter clause seeks to repeal (revoke) section 79 of the Criminal Law (Codification and Reform) Act Chapter 9:23.  Section 79 criminalises the deliberate transmission of HIV.
About the offence
The offence of  ‘Deliberate Transmission of HIV is committed by a person who  intentionally does anything which he or she knows will infect another person with HIV or anything which he or she realises involves the risk or possibility of infecting the other person with the HIV virus.  For  a  person to be convicted of this offence, the person must be aware that he or she  is  infected with HIV or should at least realise that there are chances of him or her being infected with the virus.
If convicted, the person can be imprisoned for up to 20 years. In the case of Nevison Mpofu v The State HB 314/17, a Bulawayo man  who knew that he was himself HIV positive was sentenced to five years imprisonment after he intentionally had unprotected sexual intercourse with the complainant who was HIV negative. This is the offence which the Bill seeks to outlaw.
Arguments for decriminalisation
It has been argued that the offence is unconstitutional in that it discriminates against persons living with HIV/AIDS. Some have debated that the offence is vaguely formulated such that it can lead to convictions of the innocent. Other proponents argue that the offence dissuades people from being tested for HIV thereby promoting transmission of the virus. Be that as it may be, the Constitutional Court ruled in the cases of S v Mpofu and Mlilo CCZ 05/16 that section 79 is not unconconstitutional.
Arguments for criminalisation
Criminalisation originated in the USA after a one Nushawn Williams exposed over 100 women to the virus in New York. It is a no brainer that HIV/AIDS is a prominent world public health issue. Its prevalence in Zimbabwe can never be overemphasized. The virus affects life expectancy and has serious and life changing consequences to the victim. Criminalisation undoubtedly curtails the intentional and reckless exposure of innocent persons to HIV. This explains why deliberate transmission of the virus was made an offence in Zimbabwe
Conclusion and recommendations
It is a fact that prosecution of the offence of deliberate HIV transmission is problematic. Repealing it as contemplated by clause 53(2) of the Marriage Bill however seem not to be the best solution. In S v Semba HH 299/17 Hungwe J observed that “there is need to revisit the section with a view to developing proper guidelines for the prosecution under that section”. A recent study indicates that 23 states have adopted HIV specific statutes that criminalises deliberate HIV transmission. The other alternative is therefore emulating other countries and enact an HIV specific statute in Zimbabwe.
Fiat Justitia Ruat Caelum!
Nyamukondiwa Fidelicy writes in his personal capacity. He holds a Diploma in Law and is a former Public Prosecutor at Masvingo Magistrates Court. He is a LLB(HONS) student at Herbert Chitepo Law School. Contactable on 0785827154 /nhanyams@yahoo.com.

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